EXHIBIT 10.3
August 28, 2003
To: Lenders under the Calpine Corporation Credit Agreement
From: Calpine Corporation
Re: Amendment and Waiver Request Concerning Proposed South Point and Broad
River Stock Pledges (this "Amendment and Waiver Request")
Ladies and Gentlemen:
We refer to the Amended and Restated Credit Agreement dated as of July 16, 2003
(the "Credit Agreement"), among Calpine Corporation ("Calpine"), certain
commercial lending institutions, as lenders (collectively, the "Lenders"), The
Bank of Nova Scotia, as Lead Arranger, Bookrunner and Administrative Agent (the
"Administrative Agent"), Bayerische Landesbank, Cayman Islands Branch, as Lead
Arranger, Co-Bookrunner and Documentation Agent, and ING Capital LLC and Toronto
Dominion (Texas) Inc., as Lead Arrangers, Co-Bookrunners and Co-Syndication
Agents. Capitalized terms used in this Amendment and Waiver Request and not
otherwise defined herein shall have the meanings given to them in the Credit
Agreement.
We are requesting certain waivers under the Credit Agreement, more particularly
described in (II) below, in connection with certain stock pledges being required
in connection with the existing South Point and Broad River sale-leaseback
financings. As discussed below, the stock pledges are also indirectly related to
Calpine's pending California peaker financing. These California peaker and
sale-leaseback financings are described in (I)(A) and (I)(B) below.
Also requested hereby are certain amendments to the Credit Agreement, more
particularly described below, which clarify the operation of the provisions of
the Credit Agreement that relate to (a) CES Assets and (b) releases of the
Lenders' Liens in connection with intercompany asset transfers. The former have
been requested by the Administrative Agent and certain of the other Lenders.
Their purpose is to make clear that all the Credit Agreement provisions
applicable to CES Assets (such as the $500,000,000 basket and the mandatory
prepayment requirement) are effective even after such Assets are transferred
from Calpine Energy Services, L.P. ("CES") or one of its Subsidiaries to another
Calpine Subsidiary (which transfers are permitted by the Credit Agreement).
Section 10.9(a)(ii) of the Credit Agreement includes a customary provision that
Liens on Collateral must be released by the Administrative Agent in connection
with dispositions of such Collateral that are permitted under the Credit
Agreement. Such
1
Section includes, however, a parenthetical phrase which states that the
permitted dispositions to which such automatic lien release provisions apply do
not include permitted intercompany transfers. The amendment to such Section
being requested by Calpine, with the support of the Administrative Agent, is
intended to make clear that waivers to such parenthetical phrase may be approved
with a normal Required Lenders vote.
An additional amendment requested by Calpine would permit pledges of certain
designated CES gas transportation/storage and electric
transmission/interconnection contracts to the lenders under the CCFCII Credit
Agreement.
I. WAIVERS.
A. Background - California Peakers Transaction. Calpine is nearing the
completion of the planned financing of its eleven LM-6000 peaker plant assets
located in California and owned by Calpine's subsidiary, Gilroy Energy Center,
LLC ("GEC") and subsidiaries of GEC (the "California Peakers Financing"). The
California Peakers Financing will include up to $270 million of non-recourse
debt, secured by the peaker plant assets. The senior debt is expected to be
amortized over an 8-year term, which coincides with the term of the offtake
agreement with the California Department of Water Resources being served by the
eleven LM-6000 peaker plant assets. In addition to the senior debt, as part of
the California Peakers Financing, CIT Capital is expected to arrange
approximately $74 million of mezzanine financing via the sale of a preferred
interest in GEC Holdings, LLC, which is GEC's parent company. The California
Peakers Financing is expected to close in September 2003 (possibly into escrow
pending the receipt of certain required regulatory approvals). The proceeds of
the senior debt will be used to reimburse GEC and Calpine for the cost of
developing and constructing the eleven peaker plants, and the proceeds of the
preferred equity will be applied toward new capital expenditures.
Calpine represents and warrants that the senior debt portion of the California
Peakers Financing is permitted under the debt and lien incurrence provisions of
the Credit Agreement (Sections 8.2.2(e) and 8.2.3(n)(C), respectively), and that
the preferred equity component is permitted under Section 8.2.15 of the Credit
Agreement.
B. Background - Existing South Point, Broad River and RockGen Sale-Leaseback
Transaction. In connection with CIT's agreement to arrange the preferred equity,
Calpine has agreed to take certain steps to shore-up CIT's collateral position,
as lessor/equity participant, under the existing sale-leaseback financing of
Calpine's South Point, Broad River and RockGen projects, which closed in 2001
(the "Portfolio Sale-Leaseback"). Pursuant to the Portfolio Sale-Leaseback, each
of the South Point, Broad River and RockGen projects was sold by a Calpine
subsidiary to an owner-lessor (which financed its acquisition of the plants with
debt) and then leased back to three separate Calpine subsidiaries. The two
proposed changes to the Portfolio Sale-Leaseback's collateral package are as
follows:
2
(1) Two South Point-specific power purchase agreements currently
held in the name of CES - one with Imperial Irrigation District and the
other with Nevada Power and together having an approximate mark-to-market
value of $37,000,000 as of June 30, 2003, with the actual Fair Market
Value to be determined upon assignment of the contracts (the "CES
Contracts") - will be assigned to the Calpine subsidiary that is leasing
the South Point project as a result of the Portfolio Sale-Leaseback (the
"South Point Lessee"); and
(2) Calpine's ownership interest in the South Point Lessee, Broad
River and RockGen lessee entities will be pledged to the owner-lessors of
the plants under the Portfolio Sale-Leaseback and then on-pledged by the
lessor to the debt investors.
Since the lessors (and debt investors) already own the South Point, Broad River
and RockGen plants themselves, and since the lessee entities do not own any
assets other than a leasehold interest in the plants (and plant-related assets
and contracts), the proposed new stock pledges covering Calpine's ownership
interest in the three lessee entities can be viewed as facilitating the lease
financing parties' foreclosure remedies.
C. Requested Waivers. Most of the transaction described under (B) above is
permitted under the terms of the Credit Agreement without consent. However, to
accomplish these steps, Calpine needs the following consents/waivers from the
Lenders:
(1) Tranfer of South Point Lessee Entity. The South Point Lessee is
currently a first-tier subsidiary and therefore pledged to the Lenders and 144A
bondholders. Prior to executing the pledge in favor of the portfolio lease
financing parties, we propose to accomplish the following steps, the end result
of which would be that the South Point Lessee will no longer be a first-tier
subsidiary pledged to the Lenders: (i) Calpine contributes its ownership
interest in the South Point Lessee to Calpine Power Company, and (ii) Calpine
Power Company contributes its ownership interest in South Point Lessee to a
newly formed entity - "South Point Holding Company" (the name has not yet been
finalized) - which will be owned jointly by Calpine Power Company, CPN Energy
Services GP, Inc. and CPN Energy Services LP, Inc., each of which entities is a
first-tier Calpine subsidiary that has already been pledged to the Lenders and
the 144A bondholders. To accomplish these steps, we will need the currently
existing pledge by Calpine of its ownership interest in the South Point Lessee
to be released. We therefore request that, pursuant to Section 11.1(f) of the
Credit Agreement, the Lenders consent to the release of their Lien on the stock
of the South Point Lessee. The South Point Lessee will continue to be indirectly
owned by Subsidiaries of Calpine that have already been pledged to the Lenders.
Section 8.2.9(b) of the Credit Agreement requires that, if Calpine
transfers the stock of a first-tier subsidiary, the stock of which has been
pledged to the Lenders and 144A bondholders (any such subsidiary, a "Pledged
Entity"), to another Calpine subsidiary, the assets of the transferred
subsidiary must be transferred either to Calpine or to another Pledged Entity.
Because the South Point Lessee is a Pledged Entity
3
and the transfer of its stock to Calpine Power Company (and then further to the
newly formed "South Point Holding Company") would violate this provision, we are
also seeking a waiver by the Lenders of compliance by Calpine with Section
8.2.9(b) to the extent necessary to transfer the stock of the South Point Lessee
to Calpine Power Company.
(2) Once the South Point Lessee has been moved, as provided above, the
Calpine subsidiaries that own the South Point Lessee and the two other entities
that are leasing the Broad River and RockGen projects (the "Broad River Lessee"
and the "RockGen Lessee", respectively, and, together with the South Point
Lessee, the "Lessee Entities") intend to pledge their ownership interest in the
three Lessee Entities to the owner-lessors in the Portfolio Sale-Leaseback. Such
pledges will be permitted by Section 8.2.3(m) of the Credit Agreement
(permitting liens with respect to Sale/Leaseback Transactions). However, since
the definition of Sale/Leaseback Transactions excludes "capital leases", our
reliance on Section 8.2.3(m) raises an interpretive issue in connection with the
pledge of the stock of the Broad River Lessee to such owner-lessor. At the time
the Broad River lease was closed, it was accounted for as an operating lease and
thus a "Sale/Leaseback Transaction"; as part of the restatement required by
Deloitte & Touche earlier this year, due to certain technical accounting issues,
we restated our financial statements to account for the Broad River lease as a
"capital" lease. Since the Broad River lease was once, but is no longer, a
Sale/Leaseback Transaction, it is unclear whether we could rely on Section
8.2.3(m) in pledging the ownership interest in the Broad River Lessee. For the
avoidance of any doubt, we seek a waiver of Section 8.2.3 to the extent
necessary to permit the Broad River stock pledge.
* * *
For the above reasons, pursuant to Section 11.1 of the Credit Agreement, Calpine
hereby requests the Lenders' written waiver of Sections 8.2.3 and 8.2.9(b) of
the Credit Agreement and the Lenders' consent to the release of the South Point
Lessee stock pledge, but only, in the case of Sections 8.2.3 and 8.2.9(b), to
the extent that the following transactions would violate such Sections or be
otherwise disallowed under such Sections: (a) transfer by Calpine Corporation to
Calpine Power Company of the stock of the South Point Lessee (and, in connection
with such transfer, the release of the existing pledge of the ownership interest
in the South Point Lessee) and (b) pledge of the ownership interest in the Broad
River Lessee as security for the Portfolio Sale-Leaseback obligations.
II. AMENDMENTS.
4
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ DENIS P. O'MEARA
- ------------------------------------
Name: Denis P. O'Meara,
Managing Director
Institution: The Bank of Nova Scotia
Date:
5
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ JOSEPH MORONEY
- ----------------------------------
Name: Joseph Moroney
Institution: Landmark CDO Limited,
By: Aladdin Capital Management LLC
As Manager
Date: 9/3/2003
6
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ JOSEPH MORONEY
- -------------------------------------
Name: Joseph Moroney
Institution: Landmark II CDO Limited,
By: Aladdin Capital Management LLC
As Manager
Date: 9/03/03
7
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
Bayerische Landesbank
/s/ DIETMAR RIEG /s / JAMES H. BOYLE
- --------------------------- ---------------------------------
Name: Dietmar Rieg, Name: James H. Boyle
First Vice President Vice President
Institution: Institution:
Date: 9/5/03 Dated: 9/5/03
8
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ JONATHAN BERG
- --------------------------------------
Name: Jonathan Berg
Vice President
Institution: Gallatin Funding I Ltd.
By: Bear Stearns Asset Management Inc.
Date: September 5, 2003
9
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ ANN E. MORRIS
- ---------------------------------------
Name: Ann E. Morris
Asst Vice President
Institution:. Stanwich Loan Funding LLC
Date:
10
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ STACEY MALEK
- --------------------------------
Name: Stacey Malek
Attorney In Fact
Institution:. Trumbull THC, Ltd.
Date: September 4, 2003
11
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ ANN E. MORRIS
- ---------------------------
Name: Ann E. Morris
Authorized Agent
Institution:. ELT LTD.
Date:
12
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
STEIN ROE & FARNHAM CLO I LTD.
By: Columbia Management Advisors, Inc.
(f/k/a Stein Roe & Farnham Incorporated),
As Portfolio Manager
/s/ JAMES FOLLOWS
- -----------------------------------
Name: James Follows
Senior VP & Portfolio Manager
Institution:.
Date:
13
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
AURUM CLO 2002-I LTD.
By: Columbia Management Advisors, Inc.
(f/k/a Stein Roe & Farnham Incorporated),
As Investment Manager
/s/ JAMES FOLLOWS
- -------------------------------------
Name: James Follows
Senior V.P. & Portfolio Manager
Institution:.
Date:
14
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ ANN E. MORRIS
- -------------------------------
Name: Ann E. Morris
Asst Vice President
Institution:. SRF Trading, Inc.
Date:
15
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ ANN E. MORRIS
- ----------------------------
Name: Ann E. Morris
Asst Vice President
Institution:. SRF 2000, INC.
Date:
16
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ MARTIN C. LIVINGSTON
- ---------------------------------------------
Name: Martin C. Livingston
Institution:. Credit Lyonnais New York Branch
Date: 4 September 2003
17
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ JOHN H. COSTELLO
- -------------------------------
Name: John H. Costello
Assistant Treasurer
Institution:. Fidelity Advisor Series II: Fidelity
Advisor Floating Rate High
Income Fund Date:
18
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ JOHN H. COSTELLO
- -------------------------
Name: John H. Costello
Assistant Treasurer
Institution:. Fidelity Fixed-Income Trust: Fidelity
High Income Fund
Date:
19
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ DENNIS R. ASCHER
- ------------------------------
Name: Dennis R. Ascher
Institution:. Foothill Income Trust, L.P.
Date: 9/04/03
20
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ DORIAN HERRERA
- -------------------------------
Name: Dorian Herrera
Authorized Agent
Institution:. KZH Pondview, LLC
Date:
21
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ DORIAN HERRERA
- ---------------------------------
Name: Dorian Herrera
Authorized Agent
Institution:. KZH Waterside, LLC
Date:
22
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ LANCE P. BLACK
- ------------------------------
Name: Lance P. Black
Institution:. Protective Life Insurance Company
Date: 9/4/03
23
Acknowledged and Agreed to by:
ARCHIMEDES FUNDING IV (CAYMAN), LTD
BY: ING Capital Advisors LLC,
As Collateral Manager
BY: /s/ GORDON R. COOK
-------------------------------
Name: Gordon R. Cook
Title: Managing Director
BALANCED HIGH-YIELD FUND II, LTD.
BY: ING Capital Advisors LLC,
As Asset Manager
BY: /s/ GORDON R. COOK
-------------------------------
Name: Gordon R. Cook
Title: Managing Director
ENDURANCE CLO I, LTD.
BY: ING Capital Advisors LLC,
As Collateral Manager
BY: /s/ GORDON R. COOK
-------------------------------
Name: Gordon R. Cook
Title: Managing Director
SEQUILS-ING I (HBDGM), LTD.
BY: ING Capital Advisors LLC,
As Collateral Manager
BY: /s/ GORDON R. COOK
-------------------------------
Name: Gordon R. Cook
Title: Managing Director
24
ING-ORYX CLO, LTD.
BY: ING Capital Advisors LLC,
As Collateral Manager
BY: /s/ GORDON R. COOK
-------------------------------
Name: Gordon R. Cook
Title: Managing Director
NEMEAN CLO, LTD.
BY: ING Capital Advisors LLC,
As Investment Manager
BY: /s/ GORDON R. COOK
-------------------------------
Name: Gordon R. Cook
Title: Managing Director
25
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
ING CAPITAL LLC
/s/ ERWIN THOMET
- ---------------------------------
Name: Erwin Thomet
Managing Director
/s/ G. DOMINICK BELLAMY, JR.
- ---------------------------------
G. Dominick Bellamy, Jr.
Director
26
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ DIANE J. EXTER
- --------------------------------------
Name: Diane J. Exter
Managing Director
Portfolio Manager
Institution:. Sankatry Advistors, LLC as
Collateral Manger for Castile Hill II -
INGOTS, Ltd, as Term Lender
Date: 09/04/03
27
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ DIANE J. EXTER
- -------------------------------
Name: Diane J. Exter
Managing Director
Portfolio Manager
Institution:. Castile Hill III CLO Limited
By: Sankaty Advisors, LLC as Collateral Manager
Date: 09/04/03
28
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ STACEY MALEK
- ----------------------------------
Name: Stacey Malek
Attorney In Fact
Institution:. Loan Funding Corp. THC, Ltd.
Date: September 4, 2003
29
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ LYNN CHASIN
- -------------------------------
Name: Lynn Chasin
Institution:. Toronto Dominion (Texas) Inc.
Date: 9/3/03
30
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ ROGER YEE
- --------------------------
Name: Roger Yee
Institution:. Citigroup Alternative Investments/TAMIC
as managers for Citigroup Investments Corp. Loan Fund Inc.
& Columbus Loan Funding Ltd.
Date: 9/5/03
31
Calpine, with the support of the Administrative Agent, also requests the
Lenders' written approval that all of the defined terms and other indicated
paragraphs of the Credit Agreement included in Annex A hereto be amended to read
in their entireties as set forth in such Annex. (In reviewing Annex A, you will
note that it is in "marked" form, showing the changes from the Credit Agreement
as originally executed.) Upon receipt of the required signatures hereto, the
amendment of such defined terms and paragraphs shall be effective.
III. MISCELLANEOUS.
This Amendment and Waiver Request, and any amendment or waiver pursuant hereto,
shall not constitute an amendment or waiver of any other provision of the Credit
Agreement or the Loan Documents not expressly referred to herein and shall not
be construed as a waiver or consent to any further or future action on the part
of Calpine that would require a waiver or consent of the Administrative Agent
and/or the Lenders. Except as expressly amended or waived hereby, the provisions
of the Credit Agreement and the Loan Documents are and shall remain in full
force and effect. This Amendment and Waiver Request and any amendment or waiver
granted pursuant hereto shall be governed by, and construed in accordance with,
the laws of the State of New York.
Please provide your institution's acknowledgement and approval to this Amendment
and Waiver Request at your earliest opportunity, but in any event no later than
Thursday, September 4, 2003, by returning a signed copy of this letter to the
attention of Rick Dean of Scotia Capital at facsimile number 212-225-5172.
Should you have any questions, please feel free to contact me at 408-792-1107,
Rick Dean of Scotia Capital at 212-225-5276 or Alok Garg of Scotia Capital at
212-225-5463.
Sincerely,
CALPINE CORPORATION
Michael Thomas
Senior Vice President and Treasurer
Acknowledged and Agreed to by:
/s/ BRYAN READ
- ---------------------------
Name: Bryan Read
Institution:. Union Bank Of California, N.A.
Date: September 4, 2003
32
ANNEX A
AMENDMENTS TO CREDIT AGREEMENT
1. SECTION 1.1 ("DEFINED TERMS"): AMENDMENT TO AND ADDITION OF CERTAIN
DEFINED TERMS
Section 1.1 of the Credit Agreement is hereby amended by deleting therefrom the
definitions of "Capex Requirement", "CES Assets", "Fair Market Value" and "Net
Available Cash" in their respective entireties and substituting in place thereof
the following new definitions:
"Capex Requirement" means, with respect to the utilization for Capital
Expenditures of the Net Available Cash from any Asset Sale, Monetization,
Insurance Event or incurrence of secured Indebtednesstransaction covered by any
of those clauses of Section 3.1.1(c) which include a statement referring to the
Capex Requirement, the requirement that, if such Net Available Cash is derived
from assets owned by the Borrower, any Pledged Entity or any Subsidiary of a
Pledged Entity, such Net Available Cash may only be used to make Capital
Expenditures by the Borrower, any Pledged Entity or any Subsidiary of a Pledged
Entity.
"CES Assets" means (a) all assets owned by CES or any of its Subsidiaries
on the Closing Date and any additional assets to the extent CES or any of its
Subsidiaries obtains an interest in such assets after the Closing Date, (b) the
equity interests in CES and (c) any equity interests in any Subsidiary of the
Borrower (other than CES or any of its Subsidiaries) to which any assets
described in clauses (a) or (b) above have been transferred; provided that, for
purposes of Sections 8.2.2(e), 8.2.2(l), 8.2.2(m), 8.2.10(c)(v)(B) and the
definitions of "Non-Transferred CES Asset Securing Transaction" and "Transferred
CES Asset Lien Transaction" herein, CES Assets shall be deemed not to include
Designated CES Contracts.
"Fair Market Value" means the value that would be paid by a willing buyer
to a willing seller in a transaction not involving duress or necessity of either
party; provided that the Fair Market Value at any time of the equity interests
in a Subsidiary of the Borrower described in clause (c) of the definition of
"CES Assets" shall, for purposes of Sections 8.2.2(e), 8.2.2(l), 8.2.2(m),
8.2.10(c)(v) of this Agreement and the definition of "Net Available Cash"
herein, be deemed to equal the Fair Market Value of the assets described in
clauses (a) and (b) of the definition of "CES Assets" that are then owned by
such Subsidiary.
"Net Available Cash" means, without duplication, (a) with respect to any
Asset Sale, the cash or cash equivalent payments received by the Borrower or any
of its Subsidiaries in connection with such Asset Sale (including any cash
received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise, but only as or when received and also
including the proceeds of other property received when converted to cash or cash
equivalents) net of the sum of, without duplication, (i) all reasonable legal,
title and recording tax expenses, reasonable commissions, and other
33
reasonable fees and expenses incurred directly relating to such Asset Sale, (ii)
all local, state, federal and foreign taxes required to be paid or accrued as a
liability by the Borrower or any of its Subsidiaries as a consequence of such
Asset Sale, (iii) payments made to repay Indebtedness which is secured by any
assets subject to such Asset Sale in accordance with the terms of any Lien upon
or other security agreement of any kind with respect to such assets, or which
must by its terms, or by applicable law, be repaid out of the proceeds from such
Asset Sale and (iv) all distributions required by any contract entered into
other than in contemplation of such Asset Sale to be paid to any holder of a
minority equity interest in such Subsidiary as a result of such Asset Sale, so
long as such distributions do not exceed such minority holder's pro rata portion
(based on such minority holder's proportionate equity interest) of the cash or
cash equivalent payments described above, net of the amounts set forth in
clauses (i)-(iii) above; (b) all cash insurance proceeds received by the
Borrower or any of its Subsidiaries from any condemnation awards or casualty
losses (excluding proceeds of business interruption insurance) in respect of any
asset the sale, transfer, lease or other disposition of which would constitute
an Asset Sale, net of all payments made to repay Indebtedness which is secured
by the assets which were the subject of such condemnation or casualty; provided,
however, so long as no Event of Default shall have occurred and be continuing,
upon the Borrower's request within 90 days after the date of such occurrence,
such proceeds shall be retained by the Borrower or such Subsidiary or delivered
to the Borrower or such Subsidiary to repair or replace the property subject to
such casualty so long as the Borrower or such Subsidiary has undertaken and is
diligently pursuing the repair of such property; provided, however, that if such
repairs cease or if, after such repairs are completed, the Borrower or such
Subsidiary retains any of such proceeds, such proceeds shall thereupon be
applied as provided in Sections 2.2.2 and 3.1.1; and (c) with respect to any
Monetization or any incurrence of Indebtedness (other than a Transferred CES
Asset Lien Transaction or a Non-Transferred CES Asset Securing Transaction), the
cash proceeds received by the Borrower or any of its Subsidiaries from such
Monetization or incurrence, net of attorneys' fees and expenses, banking and/or
investment banking fees and expenses, accountants' fees and expenses,
underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith, (d) with respect to any Transferred
CES Asset Lien Transaction, an amount equal to (i) the cash proceeds received by
the Borrower or any of its Subsidiaries on account of the incurrence of the
Indebtedness, obligation or liability underlying such Transferred CES Asset Lien
Transaction (whether or not such incurrence is completed prior to such
Transferred CES Asset Lien Transaction), net of attorneys' fees and expenses,
banking and/or investment banking fees and expenses, accountants' fees and
expenses, underwriting discounts and commissions and other customary fees and
expenses actually incurred in connection therewith, multiplied by (ii) the ratio
obtained by dividing (A) the Fair Market Value of the applicable CES Assets by
(B) the Fair Market Value of all assets (including the applicable CES Assets) in
which a security interest is granted pursuant to such Transferred CES Asset Lien
Transaction (provided that in no event shall the Net Available Cash with respect
to any Transferred CES Asset Lien Transaction exceed the Fair Market Value of
the applicable CES Assets) and (e) with respect to any Non-Transferred CES Asset
Securing Transaction, an amount equal to (i) the cash proceeds received by the
Borrower or any of its Subsidiaries on account of the incurrence of the
Indebtedness, obligation or liability underlying such Non-Transferred CES Asset
Securing Transaction (whether or not such incurrence is completed prior to such
Non-Transferred
34
CES Asset Securing Transaction), net of attorneys' fees and expenses, banking
and/or investment banking fees and expenses, accountants' fees and expenses,
underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith, multiplied by (ii) the ratio obtained
by dividing (A) the Fair Market Value of the applicable CES Assets by (B) the
Fair Market Value of all assets (including the applicable CES Assets) in which a
security interest is granted pursuant to such Non-Transferred CES Asset Securing
Transaction (provided that in no event shall the Net Available Cash with respect
to any Non-Transferred CES Asset Securing Transaction exceed the Fair Market
Value of the applicable CES Assets).
There shall be added to Section 1.1 of the Credit Agreement in appropriate
alphabetical order the following new definitions:
"Designated CES Contracts" means the agreements pledged to secure the
CCFCII Credit Agreement and listed on Annex B to the Amendment and Waiver
Request Concerning Proposed South Point and Broad River Stock Pledges, dated
August 28, 2003, from the Borrower to the Lenders.
"Non-Transferred CES Asset Securing Transaction" means any securing with
CES Assets by CES or any of its Subsidiaries of Indebtedness or other
obligations or liabilities of the Borrower or any of its Subsidiaries incurred
prior to the time of creation of such security.
"Transferred CES Asset Lien Transaction" means any of the following
transactions effected by the Borrower or any of its Subsidiaries (other than CES
or any of its Subsidiaries): (i) the securing with CES Assets of any
Indebtedness or other obligations or liabilities incurred prior to the time of
creation of such security or (ii) the incurrence of Indebtedness permitted under
Sections 8.2.2(e) or (l) or the incurrence of any other obligations or
liabilities not constituting Indebtedness, that, in any case, is or are secured
by CES Assets.
2. SECTION 3.1.1 ("PAYMENT TERMS"): AMENDMENT TO PARAGRAPH (c) AND (c)(vi) OF
SECTION 3.1.1
Each of (1) the lead-in clause to Section 3.1.1, (2) Section 3.1.1(c) up
to but excluding clause (i) and (3) Section 3.1.1(c)(vi) of the Credit Agreement
are hereby amended by deleting such provisions in their respective entireties
and substituting in place thereof the following:
SECTION 3.1.1 Payment Terms. Prior to the Stated Maturity Date of each
Loan, the Borrower
(c) shall, upon receipt on or after the Closing Date by the Borrower
or any Subsidiary of Net Available Cash from any Asset Sale, Monetization,
Insurance Event, or incurrence of secured Indebtedness permitted under
Section 8.2.2(l) or (m) (excluding the CES Credit Facility),
Non-Transferred CES Asset
35
Securing Transaction or Transferred CES Asset Lien Transaction, apply an
amount equal to 100% of such the Net Available Cash with respect thereto
pro rata to prepayments of the outstanding Term B Loans and the reductions
of the Revolving Loan Commitments (and to any related prepayments of the
then outstanding Revolving Loans and to cash collateralization the Letters
of Credit), in each case as contemplated under Section 2.2.2; provided
that conversion of any non-cash proceeds realized from any Asset Sale,
Monetization, or Insurance Event or other transaction described in this
clause (c) to cash (including both the principal amount of such non-cash
proceeds and any interest attributable thereto) shall be deemed to be Net
Available Cash upon such conversion and applied pursuant to this clause
(c); provided, further, that no such prepayments and reductions shall be
required as a consequence of:
(vi) without duplication of any other clause of this paragraph
(c), any Asset Sale or Monetization of CES Assets permitted under
Section 8.2.10(c)(v), and any incurrence of Non-Recourse Debt by CES
permitted under Section 8.2.2(m) (exclusive of the CES Credit
Facility), any Non-Transferred CES Asset Securing Transaction and
any Transferred CES Asset Lien Transaction, to the extent that an
amount equal to the Net Available Cash with respect thereto is
applied within 355 days after the consummation of such Asset Sale or
Monetization, or the incurrence of such Indebtednesstransaction, to
make Capital Expenditures to the extent permitted under Section
8.2.7 (subject, however, to the Capex Requirement); provided that to
the extent any such Net Available Cash is not so applied during such
355-day period, the Borrower shall make the mandatory prepayments
and commitment reductions required by this paragraph (c) by the
close of business on the last day of such 355-day period in an
aggregate amount equal to the portion of such Net Available Cash not
so applied; and provided, further, that to the extent that at any
time the aggregate amount of Net Available Cash with respect to any
Asset Sale or Monetization transaction described in this clause (vi)
that has not been applied to make Capital Expenditures in accordance
with this clause (vi) shall exceed the aggregate amount of Capital
Expenditures then permitted to be made with such Net Available Cash
under Section 8.2.7 during the applicable 355-day period described
above, an amount equal to such excess shall, immediately thereafter,
be applied in accordance with the immediately preceding proviso;
3. SECTION 8.2.2 ("NEGATIVE COVENANTS; INDEBTEDNESS"): AMENDMENT TO
PARAGRAPHS (e), (l) AND (m) OF SECTION 8.2.2
Each of (1) the lead-in clause to Section 8.2.2, (2) Section 8.2.2(e), (3)
Section 8.2.2(l) and (4) Section 8.2.2(m) of the Credit Agreement are hereby
amended by deleting such provisions in their respective entireties and
substituting in place thereof the following:
36
SECTION 8.2.2 Indebtedness. The Borrower will not, and will not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist or otherwise
become or be liable in respect of any Indebtedness, other than, without
duplication, the following:
(e) Non-Recourse Debt of a Subsidiary of the Borrower other than
CES; provided that if such Non-Recourse Debt is secured by a Lien on CES
Assets, (i) the sum of (A) the aggregate Fair Market Value of such CES
Assets, (B) the aggregate Fair Market Value of CES Assets subject to Asset
Sales and Monetizations which have been permitted under Section
8.2.10(c)(v), (C) the aggregate outstanding principal amount of
Indebtedness incurred under clause (m) below and (D) the aggregate Fair
Market Value of CES Assets that are subject to any other Transferred CES
Asset Lien Transactions and any Non-Transferred CES Asset Securing
Transactions, shall not exceed $500,000,000 during the term of this
Agreement and (ii) the Net Available Cash with respect thereto is applied
in accordance with Section 3.1.1(c); provided, further, and for avoidance
of doubt, that in determining the amount of the above-described
$500,000,000 basket utilized in connection with clauses (i)(A) and (D) in
the proviso above, (x) the amount so utilized in connection with clause
(i)(A) shall not be the full amount of such Non-Recourse Debt but rather
the Fair Market Value of the CES Assets securing such Indebtedness and (y)
the amount so utilized in connection with clause (i)(D) shall not be the
full amount of the Indebtedness, obligations or liabilities underlying the
applicable Transferred CES Asset Lien Transaction or Non-Transferred CES
Asset Securing Transaction but rather the Fair Market Value of the CES
Assets that are the subject thereof;
(l) secured Indebtedness of the Borrower or any of its Subsidiaries
(other than Indebtedness permitted under clause (e) above or clause (m)
below) so long as (i) recourse for any such Indebtedness is limited solely
to the asset or assets securing such Indebtedness and (ii) the Net
Available Cash with respect thereto is applied in accordance with Section
3.1.1(c); provided that if such Indebtedness is secured by a Lien on CES
Assets, (i) the sum of (A) the aggregate Fair Market Value of such CES
Assets, (B) the aggregate Fair Market Value of CES Assets subject to Asset
Sales and Monetizations which have been permitted under Section
8.2.10(c)(v), (C) the aggregate outstanding principal amount of
Indebtedness incurred under clause (m) below and (D) the aggregate Fair
Market Value of CES Assets that are subject to any other Transferred CES
Asset Lien Transactions or any other Non-Transferred CES Asset Securing
Transactions, shall not exceed $500,000,000 during the term of this
Agreement and (ii) the Net Available Cash with respect thereto is applied
in accordance with Section 3.1.1(c); provided, further, and for avoidance
of doubt, that in determining the amount of the above-described
$500,000,000 basket utilized in connection with clauses (i)(A) and (D) in
the proviso above, (x) the amount so utilized in connection with clause
(i)(A) shall not be the full amount of such Indebtedness but rather the
Fair Market Value of the CES Assets securing such Indebtedness and (y) the
amount so utilized in connection with clause (i)(D) shall not be the full
amount of the Indebtedness, obligations or liabilities underlying the
applicable Transferred CES Asset Lien Transaction or Non-
37
Transferred CES Asset Securing Transaction but rather the Fair Market
Value of the CES Assets that are the subject thereof;
(m) Non-Recourse Debt of CES (including any CES Credit Facility) so
long as (i) the sum of (A) the aggregate outstanding principal amount of
such Indebtedness, together with (B) the aggregate Fair Market Value of
CES Assets subject to Asset Sales and other Monetizations by CES which
have been permitted under Section 8.2.10(c)(v) and (C) the aggregate Fair
Market Value of CES Assets that are subject to any Transferred CES Asset
Lien Transactions or any other Non-Transferred CES Asset Securing
Transactions, shall not exceed $500,000,000 during the term of this
Agreement and (ii) other than with respect to the CES Credit Facility, the
Net Available Cash with respect thereto is applied in accordance with
Section 3.1.1(c); provided, further, and for avoidance of doubt, that in
determining the amount of the above-described $500,000,000 basket utilized
in connection with clause (i)(C) in the proviso above, the amount so
utilized shall not be the full amount of the Indebtedness, obligations or
liabilities underlying the applicable Transferred CES Asset Lien
Transaction or Non-Transferred CES Asset Securing Transaction but rather
the Fair Market Value of the CES Assets that are the subject thereof;
4. SECTION 8.2.10 ("NEGATIVE COVENANTS; ASSET DISPOSITIONS, ETC."): AMENDMENT
TO PARAGRAPH (c) OF SECTION 8.2.10
Each of (1) the lead-in clause to Section 8.2.10 and (2) Section 8.2.10(c) of
the Credit Agreement are hereby amended by deleting such provisions in their
respective entireties and substituting in place thereof the following:
SECTION 8.2.10 Asset Dispositions, etc. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey, or grant options, warrants or other rights with respect to,
all or any substantial part of its assets (including accounts receivable and
capital stock of Subsidiaries) to any Person (other than to the Borrower or any
Subsidiary), whether done in a single transaction or a series of related
transactions, unless
(c) such sale, transfer, lease, contribution or conveyance is not
covered by clauses (a) or (b) above and (i) the Borrower or its Subsidiary
receives consideration at the time of such sale, transfer, lease,
contribution or conveyance at least equal to the Fair Market Value of
assets being sold, transferred, leased, contributed or conveyed; (ii) at
least seventy-five percent (75%) of the consideration received by the
Borrower or such Subsidiary is in the form of cash or cash equivalents
(other than with respect to the sale of the Gilroy Receivable, as to which
there shall not be any minimum cash consideration requirement); (iii) in
the case of all Asset Sales (other than the sale of the Gilroy
Receivable), any non-cash consideration received by the Borrower or such
Subsidiary in the form of Restricted Capital shall be deemed to be a usage
of the Senior Notes Basket in an amount equal to the Fair Market Value of
such Restricted Capital as of the date of consummation of such Asset Sale;
(iv) in the case of the sale of the Gilroy Receivable, any non-cash
consideration received by the Borrower or
38
such Subsidiary shall not be deemed to be a usage of the Senior Notes
Basket; (v) in the case of any Asset Sale or Monetization of CES Assets by
CES (including any incurrence of secured Indebtedness by CES permitted
under Section 8.2.2(m), (A) such Asset Sale or Monetization provides for
no recourse to the Borrower or any of its Subsidiaries (other than
representations, warranties, covenants and indemnities entered into by the
Borrower or any of its Subsidiaries which are customary in comparable
Asset Sale or Monetization transactions) or any Lien on or recourse to any
of their assets other than to such CES Assets (excluding, in any case, for
avoidance of doubt, any capital stock of CES) and (B) the aggregate Fair
Market Value of the CES Assets subject to all such Asset Sales and
Monetizations, together with (I) the aggregate outstanding principal
amount of Non-Recourse Debt of CES incurred under Section 8.2.2(m) and
(II) the aggregate Fair Market Value of CES Assets that are subject to any
other Transferred CES Asset Lien Transactions or any other Non-Transferred
CES Asset Securing Transactions, shall not exceed $500,000,000 during the
term of this Agreement; provided, for avoidance of doubt, that in
determining the amount of the above-described $500,000,000 basket utilized
in connection with clause (II) above, the amount so utilized shall not be
the full amount of the Indebtedness, obligations or liabilities underlying
the applicable Transferred CES Asset Lien Transaction or Non-Transferred
CES Asset Securing Transaction but rather the Fair Market Value of the CES
Assets that are the subject thereof; (vi) in the case of any assets sold,
transferred, leased, contributed or conveyed by the Borrower or any
Subsidiary of the Borrower organized under the laws of the United States
(or any State thereof, including the District of Columbia) to any
Subsidiary of the Borrower organized under the laws of Canada or any
province or territory thereof, the aggregate Fair Market Value of all such
assets shall not exceed $100,000,000; and (vii) all prepayments required
in respect thereof pursuant to Sections 2.2.2 and 3.1.1 are made in
accordance therewith.
5. SECTION 10.9 ("COLLATERAL MATTERS"): AMENDMENT TO PARAGRAPH (a)(ii) OF
SECTION 10.9
Each of (1) Section 10.9(a) up to but excluding clause (i) and (2) Section
10.9(a)(ii) of the Credit Agreement are hereby amended by deleting such
provisions in their respective entireties and substituting in place thereof the
following:
SECTION 10.9 Collateral Matters.
(a) Each of the Lenders hereby acknowledges and agrees that Liens
upon the Collateral granted to or held by the Agent or the Collateral
Trustee under any Loan Document will be released:
(ii) as to any Collateral that is sold, transferred or
otherwise disposed of, or to be sold, transferred or otherwise
disposed of, as part of any sale, transfer or other disposition, or
proposed sale, transfer or other disposition permitted under
Sections 8.2.9 or 8.2.10 (exclusive of, unless the Required Lenders
shall otherwise consent in writing, any transfer
39
whether by means of merger or otherwise) to the Borrower or any
Subsidiary of the Borrower permitted under Sections 8.2.9 or 8.2.10;
provided, however, that if any Pledged Power Project is transferred
from the Borrower to a Subsidiary that is a Pledged Entity or a
Subsidiary of a Pledged Entity, the Lien created by the applicable
Security Document thereon shall be so released);
40
ANNEX B
DESIGNATED CES CONTRACTS
1. 311 Gas Transportation Agreement (up to 100,000/D), dated as of November 1,
2002, between Calpine Energy Services, L.P. and Acadian Gas Pipelines System.
2. Firm Transportation Service Agreement (#2), dated as of July 31, 2001,
between Calpine Energy Services, L.P. and Southern Natural Gas Company.
3. Firm Gas Transportation Agreement (Decatur), dated as of November 1, 2002,
between Calpine Energy Services, L.P. and Tennessee Gas Pipeline Company.
4. Natural Gas Transportation Agreement, dated as of June 1, 2003, between
Calpine Energy Services, L.P. and TXU Fuel Company.
5. Transportation Service Agreement - Interruptible (dup of K#3071, Used
K#2876), dated as of October 11, 2001, between Calpine Energy Services, L.P. (as
agent) and Northwest Pipeline Corporation.
6. Firm Gas Storage Contract, dated as of November 17, 2000, between Calpine
Energy Services, L.P. and Lodi Gas Storage, L.L.C.
7. Firm Gas Transportation Agreement (Morgan), dated as of November 1, 2002,
between Calpine Energy Services, L.P. and Tennessee Gas Pipeline Company.
8. Gas Transportation Service Agreement, dated as of May 23, 2000, between
Calpine Energy Services, L.P. (formerly Oneta) and ONEOK Gas Transportation,
L.L.C.
9. Intrastate Firm Service Agreement (200,000 MMBtu), dated as of May 22, 2000,
between Calpine Energy Services, L.P. (formerly Oneta) and Enogex Inc. (formerly
Transok, L.L.C.
10. Intrastate Firm Service Agreement (35,000 MMBtu), dated as of May 22, 2000,
between Calpine Energy Services, L.P. (formerly Oneta) and Enogex Inc. (formerly
Transok, L.L.C.
11. Facilities Agreement, dated as of August 31, 2001, between Calpine Energy
Services, L.P. and Kern River Gas Transmission Co.
12. Gas Interconnection Agreement, dated as of August 31, 2001, between Calpine
Energy Services, L.P. and Kern River Gas Transmission Co.
13. Firm Transportation Service Agreement (dup of K3050, use K#1351), dated as
of May 29, 2001, between Calpine Energy Services, L.P. and Kern River Gas
Transmission Co.
41